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R v Leo [2021] SBHC 7; HCSI-CRC 52 of 2020 (15 March 2021)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No. 52 of 2020

REGINA

V

ELMA LEO

Date of Hearing: 28 February 2021
Date of Decision: 15 March 2021

Ms. Rachel Olutimayin for the Prosecution
Mr. Allan Tinoni for the Accused

SENTENCE

Bird PJ:

1. By information filed on the 18^th March 2020, the defendant Mr Elma Leo is indicted with one count of rape contrary to section 130 F (1) (a) and (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016. Upon being arraigned, the defendant had entered a guilty plea. He was thereby convicted of that offence.
2. The offence for which you are charged is very serious and carries a maximum sentence of life imprisonment. It is as serious as a murder charge because you have intruded into the privacy of the complainant.
3. I am told that the facts of your offending are that you and the complainant are both from Nelua Village, Santa Cruz, Temotu Province. You both attended secondary school at Luasaleba. You were then 19 years old and the complainant was 16 years old.
4. On a Sunday afternoon on an unknown date between the 17^th to the 24^th March 2019, the complainant left her family home to get banana for her family at the family’s plantation. She met you along the way and you asked where she was going. She told you she was going to get banana from their plantation. Upon arrival at the plantation the banana was not ready so she began to make her way back.
5. On her way home, she met you again and you asked her for friendship. She said no and you asked her for sex. She refused and began to hurry away from you. You then suddenly jumped on the complainant causing her to fall down. You then went on top of her and told her not to shout otherwise you would do something bad to her. The complainant was very afraid and laid down quietly on the ground. You took off the complainant’s trousers and underpants. You then removed your trousers and underpants and laid on top of the complainant. You also used one of your hands to hold the complainant’s breast under her bra and shirt and kissed her mouth. The complainant struggled to stop you but you overpowered her.
6. You then pushed your erected penis into the complainant’s vagina and moved your buttocks up and down until you ejaculated. You also warned the complainant not to tell anyone or her parents about the incident otherwise you would harm her.
7. On Saturday the 27^th April 2019, the complainant had a severe stomach ache and called her mother to feel her stomach. Her mother asked her if she had met a man but she did not answer. The mother told the father about it and the father asked the complainant if she had slept with a man. The complainant did not answer. The complainant later told her parents that you had sex with her.
8. The complainant was taken to Lata Hospital and was examined by a doctor. The doctor found evidence of infection resulting from a sexually transmitted disease. She was treated with antibiotic for 5 days.
9. The complainant told her parents that you have threatened to do her harm if she told them she told them that she struggled to stop you but you were stronger than her. You were then reported to the police.
10. On the 30^th April 2019, the Chiefs conducted a hearing to settle the matter. You admitted that the story was true and you were fined $1,500.00. Your parents paid $900.00 cash and a pig valued at $600.00. The Chiefs reconciled your family with the complainant’s family during the hearing.
11. In such cases as yours, the courts have set out guidelines that the sentencing Judge ought to take into account in sentencing. In the case of John Tii v Regina [2017] SBCA 6, SICOA-CRC 14 of 2016, the Court of Appeal stated that a sentence should be crafted to attain the goals of punishment, deterrence and rehabilitation. A starting point should therefore be identified and any aggravating features should be identified. The sentencing judge should also take into consideration the circumstances of the accused and any other mitigating factors. Then the issue of rehabilitation of young offenders must also be considered so that any such person becomes a law abiding and contributing member of the community. Having taken those factors into account the sentence that each judge decides upon is just and appropriate in the circumstances of each case.
12. In the case of R v Ligiau and Dori [1985-1986] SILR 214, the then Chief Justice Ward had stated that rape is an extremely serious offence. He further stated that it is based on a selfish disregard of the rights and feelings of another and is likely to cause, more than almost other offence, serious and long-lasting harm to the victim. In that case, Ward CJ had adopted the views of Lord Lane CJ in R v Billam [1986] 1 WLR 349. In that case, it was indicated that for a contested rape case by adults without any aggravating or mitigating features the starting point was one of 5 years imprisonment.
13. The Ligiau case was approved by the Court of Appeal in the case of Nickson v R SICOA-CRC No. 11 of 2008 and had confirmed that the starting point was also one of 5 years.
14. Taking the above cases into context, I would now discuss the aggravating features in your offending. It is submitted on behalf of the prosecution that an aggravating feature in your offending is that you took advantage of the complainant’s vulnerability as a weaker gender. The complainant is of the weaker sex and in such an isolated place, anything could have happened to her.
15. Secondly, I am told that you inflicted fear in the mind of the complainant when you threatened to harm her if she shouted. That fear had kept her silent for sometime until when she felt ill and had to tell her parents about what you did to her. It is also obvious that you have infected the complainant with a sexually transmitted disease when you have sex with her. She had to be treated with antibiotic for that infection.
16. On your behalf, your lawyer had submitted that you were 19 years old at the time of offending. You were a Form 5 student at Luasaleba Secondary School then. I am told that you were arrested and placed in custody and as a result you did not complete your secondary education. Your youthfulness must be considered as a mitigating factor.
17. You have pleaded guilty to the offending which not only shows remorse but that you are willing to face the consequences of your action.
18. You have no previous conviction and I commend for living a life free of crime until this offending. I urge you to learn from your mistake and try and rehabilitate yourself so that you will be able to live a more useful life for your own betterment for your family, your community and the country as a whole.
19. You have an ambition to further your education. You want to pursue a career in carpentry and electrical. I urge go to pursue those interests after your incarceration. The Court is concerned about your education. I do not know why there was no bail application made on your behalf subsequent to your arrest. You could have been able to sit for your exams if you have been released on bail then. It is never to late to learn and I would encourage you to continue with your education as soon as you are released from incarceration.
20. I have also noted from your lawyers submissions that you were remanded and had remained in custody since the 16^th May 2019. You have co-operated with the police during investigation.
21. It was also submitted on your behalf that there was a reconciliation between your family and the complainant’s family. A compensation worth $1,600.00 was paid to the complainant’s family comprising of $900.00 in cash payment with a live pig worth $600.00. The issue was then resolved in the presence of your chiefs.
22. The reconciliation and the compensation paid to the complainant’s family also showed remorse on your part. I am told that you regretted what you did to the complainant because it had also impacted on you badly. It had cut short your education and your intended career path.
23. In sentencing you I have taken note of the cases cited by your lawyer in his written submissions. Of particular reference is the case of R v Buarobo [2017] SBHC 29. In that case, the accused was the brother of the victim. He had pleaded guilty to the offending and was sentenced to 31/2 years imprisonment after taking into account the aggravating and mitigating features in the offending.
24. In this case and having regard to the cases cited above, I put your starting point at 4 years imprisonment. For the aggravating features discussed above, I would increase the sentence by 1 year.
25. For the mitigating factors discussed which includes your early guilty plea, with no previous convictions, the reconciliation held, your being remorseful coupled with the fact that you were not able to complete your education, I would reduce the sentence by 2 years. For the delay in due prosecution of this matter, I further reduce the sentence by 1 year. You are hereby sentenced to 3 years imprisonment.

Court Orders

1. The defendant is convicted on one of rape contrary to section 136 F (a) and (b) of the Penal Code (Amendment) (Sexual Offences) Act 2016.
2. The defendant is sentenced to 3 years imprisonment.
3. I direct that the time spent in pre-trial custody be deducted from total sentence.

THE COURT
Justice Maelyn Bird
Puisne Judge